§ 7102. Comparative negligence
(a) General rule.–In all actions brought to recover damages for negligence resulting in death or injury to person or property, the fact that the plaintiff may have been guilty of contributory negligence shall not bar a recovery by the plaintiff or his legal representative where such negligence was not greater than the causal negligence of the defendant or defendants against whom recovery is sought, but any damages sustained by the plaintiff shall be diminished in proportion to the amount of negligence attributed to the plaintiff.
(a.1) Recovery against joint defendant; contribution
(1) Where recovery is allowed against more than one person, including actions for strict liability, and where liability is attributed to more than one defendant, each defendant shall be liable for that proportion of the total dollar amount awarded as damages in the ratio of the amount of that defendant’s liability to the amount of liability attributed to all defendants and other persons to whom liability is apportioned under subsection (a.2).
(2) Except as set forth in paragraph (3), a defendant’s liability shall be several and not joint, and the court shall enter a separate and several judgment in favor of the plaintiff and against each defendant for the apportioned amount of that defendant’s liability.
(3) A defendant’s liability in any of the following actions shall be joint and several, and the court shall enter a joint and several judgment in favor of the plaintiff and against the defendant for the total dollar amount awarded as damages:
(i) Intentional misrepresentation.
(ii) An intentional tort.
(iii) Where the defendant has been held liable for not less than 60% of the total liability apportioned to all parties.
(iv) A release or threatened release of a hazardous substance under section 702 of the act of October 18, 1988 (P.L.756, No.108), known as the Hazardous Sites Cleanup Act.
(v) A civil action in which a defendant has violated section 497 of the act of April 12, 1951 (P.L.90, No.21), known as the Liquor Code.
(4) Where a defendant has been held jointly and severally liable under this subsection and discharges by payment more than that defendant’s proportionate share of the total liability, that defendant is entitled to recover contribution from defendants who have paid less than their proportionate share. Further, in any case, any defendant may recover from any other person all or a portion of the damages assessed that defendant pursuant to the terms of a contractual agreement.
(a.2) Apportionment of responsibility among certain nonparties and effect.–For purposes of apportioning liability only, the question of liability of any defendant or other person who has entered into a release with the plaintiff with respect to the action and who is not a party shall be transmitted to the trier of fact upon appropriate requests and proofs by any party. A person whose liability may be determined pursuant to this section does not include an employer to the extent that the employer is granted immunity from liability or suit pursuant to the act of June 2, 1915 (P.L.736, No.338), known as the Workers’ Compensation Act. An attribution of responsibility to any person or entity as provided in this subsection shall not be admissible or relied upon in any other action or proceeding for any purpose. Nothing in this section shall affect the admissibility or nonadmissibility of evidence regarding releases, settlements, offers to compromise or compromises as set forth in the Pennsylvania Rules of Evidence. Nothing in this section shall affect the rules of joinder of parties as set forth in the Pennsylvania Rules of Civil Procedure.
(b) Recovery against joint defendant; contribution.–(Deleted by amendment).
(b.1) Recovery against joint defendant; contribution.–(Unconstitutional).
(b.2) Apportionment of responsibility among certain nonparties and effect.–(Unconstitutional).
(b.3) Off-road vehicle riding.–
(1) Off-road vehicle riding area operators shall have no duty to protect riders from common, frequent, expected and non-negligent risks inherent to the activity, including collisions with riders or objects.
(2) The doctrine of knowing voluntary assumption of risk shall apply to all actions to recover damages for negligence resulting in death or injury to person or property brought against any off-road vehicle riding area operator.
(3) Nothing in this subsection shall be construed in any way to abolish or modify a cause of action against a potentially responsible party other than an off-road vehicle riding area operator.
(c) Downhill skiing.–
(1) The General Assembly finds that the sport of downhill skiing is practiced by a large number of citizens of this Commonwealth and also attracts to this Commonwealth large numbers of nonresidents significantly contributing to the economy of this Commonwealth. It is recognized that as in some other sports, there are inherent risks in the sport of downhill skiing.
(2) The doctrine of voluntary assumption of risk as it applies to downhill skiing injuries and damages is not modified by subsections (a) and (a.1).
(c.2) Savings provisions.–Nothing in this section shall be construed in any way to create, abolish or modify a cause of action or to limit a party’s right to join another potentially responsible party.
(d) Definitions.–As used in this section the following words and phrases shall have the meanings given to them in this subsection:
“Defendant or defendants.” Includes impleaded defendants.
“Off-road vehicle.” A motorized vehicle that is used off-road for sport or recreation. The term includes snowmobiles, all-terrain vehicles, motorcycles and four-wheel drive vehicles.
“Off-road vehicle riding area.” Any area or facility providing recreational activities for off-road vehicles.
“Off-road vehicle riding area operator.” A person or organization owning or having operational responsibility for any off-road vehicle riding area. The term includes:
(1) Agencies and political subdivisions of this Commonwealth.
(2) Authorities created by political subdivisions.
(3) Private companies.
“Plaintiff.” Includes counter claimants and cross-claimants.
Verdict sheet
Question one: Do you find that defendant was negligent?
_____ Yes _____ No
If you answer No, your verdict is in favor of defendant. Please return to the Courtroom.
Question two: Do you find that defendant’s negligence was a factual cause of the injuries suffered by plaintiff, G. Howett Hertz?
_____ Yes _____ No
If you answer No, your verdict is in favor of defendant. Please return to the Courtroom.
Question three: Do you find that plaintiff, G. Howett Hertz was comparatively
negligent?
_____ Yes _____ No
If you answer No, your verdict is in favor of the plaintiff. Proceed to question six and award damages.
Question four: Do you find that plaintiff, G. Howett Hertz’ comparative negligence was a factual cause of her injuries? If you answer No, your verdict is in favor of plaintiff. Proceed to question six and award damages.
_____ Yes _____ No
Question five: Allocate the comparative fault of each of the parties.
______% Plaintiff, G. Howett Hertz
______ % Defendant, Leah Bility
Your answer is to be reflected in a percentage of responsibility with the three numbers adding up to 100%. If you find that the plaintiff is more than 50% responsible, your verdict is for defendant. Please return to the Courtroom.
Question six: In what amount, without regard to liability, do you find that plaintiff, G. Howett Hertz has been damaged as a result of this incident.
$___________
Please return to the Courtroom.
Recklessness
There is a bona fide purpose for allowing averments of “recklessness” in Plaintiff’s Complaint regardless of whether or not the Court believes at this juncture that punitive damages are not warranted. If the evidence reveals and the fact-finder finds that the Defendants acted with recklessness, then the defendants would be barred from raising the affirmative defense of contributory negligence at trial. Kasanovich v. George, 348 Pa. 199, 203, 34 A.2d 523, 525 (1943). “When willful or wanton misconduct is involved, comparative negligence should not be applied.” Krivijanski v. Union R. Co., 515 A.2d 933, 936, 357 Pa. Super. 196, 203 (1986). For this reason, plaintiffs should not be barred from alleging that the Defendant acted with recklessness, and defendants should not be immunized from and avoid the potential affirmative defense of comparative negligence, simply based on whether or not a claim for punitive damages is allowed. Thus, an averment of recklessness is proper on its own, with or without a claim for punitive damages and defendant’s preliminary objections should be dismissed.
Distracted Driving By, Charles Kannebecker, Esquire
In Kondash v. Latimer, No. 2009 Civil 8622 (Lackawanna County, 2010) Senior Judge Thomson held that allegations that a driver was distracted by using a cell phone or similar electronic device would be sufficient to go to a jury on the issue of punitive damages.
In Quallich v Aboud, No. GD12-022255 (Allegheny County) the Court denied defendant’s Preliminary objections to plaintiff’s punitive damage claim asserting cell phone use causing defendant to cause a motor vehicle accident.
In Deringer v. Li, No. GD10-019081 (Allegheny), the Plaintiff alleged that the defendant was using a mobile phone when he drove his vehicle into the rear end of the Plaintiff’s vehicle. The defendant argued that such conduct constituted mere negligence. The defendant also argued that the legislature has not made cell phone use while operating a car illegal. The court disagreed and overruled the preliminary objections. The importance of the Court’s ruling is that the Court was required to perform an analysis of whether the conduct at issue (use of a mobile device while operating a car) could properly support a claim for punitive damages. By overruling the preliminary objections, the Court held that a jury could find that cell phone use while operating a motor vehicle constitutes reckless conduct which, in turn, can support a claim for punitive damages.
In Freethy v. Goike, 2011 WL 7177007 (Lackawanna Cty. 2011) the court upheld a claim for punitive damages for cell phone use while driving through a construction zone. The Court reasoned that a construction zone, with the presence of workers, heavy equipment, traffic congestion and new traffic patterns, all required a heightened awareness while driving. The Court allowed the claim for punitive damages to proceed. In the case presently before this Court it is not a construction zone, but rather is an active school zone, with a 15 MPH speed limit, with buses and cars coming and going, with school children and parents, with cones directing the flow of traffic along with a traffic controller located in the middle lane.
Cases such as Xander v Kiss, 2012 WL 168326 which denied punitive damages, did so only because they would not allow punitive damages based on cell phone usage alone and required instead some “additional indicia of recklessness”.
A Comparison of the Cell Phone and Drunk Driver
Conclusion: When driving conditions and time on task were controlled for, the impairments associated with using a cell phone while driving can be as profound as those associated with driving drunk.
Conclusion: The use of cellular telephones in motor vehicles is associated with a quadrupling of the risk of a collision during the brief time of a call.
Conclusion: The ability of subjects to attend to information in the driving environment was impaired while conversing on a cell phone. This impairment was observed even when objects were presented directly where subjects were looking.
Conclusion: Drivers using cell phones are 4 times as likely to get into serious crashes.
Conclusion: Driver’s use of a mobile phone up to 10 minutes before a crash was associated with a 4 times increased likelihood of crashing.
Assumption of Risk
The doctrine of assumption of risk “has been very problematic and has fallen from the favor of some of the judiciary and legal commentators. In fact, the doctrine as a separate affirmative defense has only narrowly survived abolishment by our Supreme Court.” Bullman v. Giuntoli, PICS No. 00-1904.
The assumption of risk defense is made out only by showing that a person “with appreciation and knowledge of an obvious danger, purposely elects to abandon a position of relative safety and chooses to reposition himself in a place of obvious danger and by reason of that repositioning is injured.” McIntyre v. Cusick, 372 A. 2d 864, 866 (Pa. Super. 1977).”
The defense of assumption of the risk will not prevent recovery unless the evidence conclusively establishes that the plaintiff was subjectively aware of the risk and voluntarily assumed it. Barrett v. Fredavid Builders, Inc., 685 A.2d 129 (Pa. Super. 1996). Voluntariness is established only when the circumstances manifest a willingness to accept the risk. Staub v. Toy Factory, Inc., 749 A.2d 522 (Pa. Super. 2000). Mere contributory negligence does not establish assumption of the risk. Id.
Rather, a plaintiff has assumed the risk where he has gone so far as to abandon his right to complain and has absolved the defendant from taking any responsibility for the plaintiff’s injuries. Id. In order to prevail on assumption of risk, the defendant must establish both the “awareness of the risk” prong and the “voluntariness” prong. Id.
The defense is not available unless it is beyond question, such that no two reasonable minds could differ, that the plaintiff voluntarily and knowingly proceeded in the face of an obvious and dangerous condition. Hardy v. Southland Corp., 645 A. 2d 839 (Pa. Super. 1994), citing, Howell v. Clyde, 620 A. 2d 1107 (Pa. 1993). Assumption of the risk cannot be used as a defense unless it is shown that plaintiff “must have appreciated the danger itself and the nature, character and extent which made it unreasonable.” Crance v. Sohanic, 496 A. 2d 1230, 1232 (Pa. Super. 1985).
The Pennsylvania Supreme Court in Hughes v. Seven Springs Farm, Inc., 762 A.2d 399 (Pa. 2000), discussed the status of the doctrine of assumption of risk in light of the passage of the comparative negligence statute and stated that as a general rule, the doctrine of assumption of the risk, with its attendant “complexities” and “difficulties,” has been supplanted by the Pennsylvania General Assembly’s adoption of a system of recovery based on comparative fault in the Comparative Negligence Act. 42 Pa.C.S.A. §7102(a)-(b).
Plaintiff testified that it did not occur to her at any point on the morning of the accident that he might fall. Since she did not appreciate the danger presented by the water, defendants have not met their burden of showing that plaintiff assumed the risk of falling and being injured. Thus, she cannot have assumed the risk of this accident.
Where plaintiff tried to minimize her risk of falling, but fell nevertheless, she did not voluntarily assume the risk of falling. Barrett v. Fredavid Builders, Inc., 685 A.2d 129 (Pa. Super. 1996). Plaintiff, Fran K. chose the safest possible route to her destination. After walking over the clear and dry sidewalks of her own home and the apartment building between plaintiff and defendants’ properties, she noticed ice and snow on defendants’ sidewalk.
She looked for the easiest place to walk and walked carefully along the grass adjacent to the sidewalk, until the grass was interrupted by a bush. She chose the grass “because it was rougher” than the sidewalk. (N. T. Fran K., October 25, 2002, p. 57.) Plaintiff elected not to walk out into the street because “there was ice everywhere” and it was “too far to go to the street.” Id. “There was no way to go. Everything was icy.” (N. T. Fran K., October 25, 2002, p. 66.) She would also have had to negotiate around a car, a sloped curb cut and/or a fire hydrant to get to the street.
In sum, plaintiff tried to minimize her risk of falling. Thus, she cannot have assumed the risk of this accident. The Court should not charge the jury on the assumption of risk defense.
Finally, in Giosa v. School District of Philadelphia, 630 A.2d 511 (Pa. Cmwlth. 1993), defendant argued that the plaintiff assumed the risk of slipping on an icy sidewalk, “because Giosa fully understood the risk involved in walking on the sidewalk, and yet voluntarily chose to encounter it.” Id. The Court held that since defendant owed plaintiff, a member of the general public, a duty to keep the public sidewalks clear from any dangerous conditions, the doctrine of assumption of risk did not apply. Id. Similarly, defendants owed plaintiff, Fran K., as a member of the general public, a duty to keep their sidewalk clear from any dangerous conditions. Similarly, the doctrine of assumption of risk does not apply and the Court should not charge the jury thereon.
